Browning v. Dixon, 954 P.2d 741 (Nev. 1998). · Go Syfert
Browning v. Dixon, 954 P.2d 741 (Nev. 1998). Cases Citing This Book View Copy Cite
41 citation events (35 in the last 25 years) across 4 distinct courts.
Strongest positive: In Re: Parental Rights as to S.H. (nev, 2018-03-15)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) In Re: Parental Rights as to S.H. (2×) also: Cited as authority (quoted)
Nev. · 2018 · quote attribution · 2 verbatim quotes · confidence high
the fundamental requisite of due process is the opportunity to be heard.
examined Cited as authority (rule) In re Guardianship of D.M.F. (3×)
Nev. · 2023 · confidence medium
Thus,. due process requires D.M.F., and those others holding protected interests, be afforded notice and an opportunity to be heard with respect to the removal of his guardian and termination of the guardianship.6 "The fundamental requisite of due process is the opportunity to be heard." Browning v. Dixon, 114 Nev. 213, 217 , 954 P.2d 741, 743 (1998) (citing Grannis v. Ordean, 234 U.S. 385, 394 (1914)).
discussed Cited as authority (rule) Campos v. Hernandez
Nev. · 2017 · confidence medium
NRCP 5(a) eliminates the requirement for service on parties in default for failure to appear, "except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons . . . ." Thus, "[a] default judgment not supported by proper service of process is void and must be set aside." Browning v. Dixon, 114 Nev. 213, 218 , 954 P.2d 741, 744 (1998).
examined Cited as authority (rule) Gonzales-Alpizar v. Griffith (3×)
Nev. · 2014 · confidence medium
Due process, in relation to comity, encompasses the idea that the order was granted after "proper service or voluntary appearance of the defendant." Wilson, 127 F.3d at 811 This court has stated that "Uhl elementary and fundamental requirement of due process . . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections." Browning v. Dixon, 114 Nev. 213, 217, 954 P.2d 741, 743 (1998) (quoting Mullane v. Cent.
discussed Cited as authority (rule) in Re: Parental Rights as to J.E.
Nev. · 2013 · confidence medium
See NRCP 60(b)(4); Browning v. Dixon, 114 Nev. 213, 218 , 954 P.2d 741, 744 (1998) (finding that failure to exercise due diligence rendered service of process improper and voided the default judgment); Dobson v. Dobson, 108 Nev. 346, 348 , 830 P.2d 1336, 1338 (1992).
cited Cited as authority (rule) Globig v. Dist. Ct. (Gonzalez-Velasco)
Nev. · 2013 · confidence medium
See NRS 14.070(1), (2); Browning v. Dixon, 114 Nev. 213, 216 , 954 P.2d 741, 742 (1998).
discussed Cited as authority (rule) Leven v. Frey (2×)
Nev. · 2007 · confidence medium
These exceptions are not at issue in this case. 9 See Browning v. Dixon, 114 Nev. 213, 217 , 954 P.2d 741, 743 (1998) (noting that notice is required by due process in any proceeding that is considered final). 10 See Harris Assocs., 119 Nev. at 641, 81 P.3d at 534 . 11 See Potter v. Potter, 121 Nev. 613, 616 , 119 P.3d 1246, 1248 (2005). 12 1985 Nev.
discussed Cited as authority (rule) Maiola v. State
Nev. · 2004 · confidence medium
Const, art. 1, § 8(5). 6 Levingston v. Washoe Co., 112 Nev. 479, 484 , 916 P.2d 163, 166 (1996), modified on rehearing, 114 Nev. 306 , 956 P.2d 84 (1998). 7 106 Nev. 100, 103 , 787 P.2d 785, 787 (1990). 8 Id. 9 Woolsey v. State, 111 Nev. 1440, 1443 , 906 P.2d 723, 726 (1995) (quoting with approval district court’s statements that “an accused person held for prosecution is in lawful custody” and that “[a]dmission to bail does not end that custody, but only changes its conditions”). 10 108 Nev. 726, 727 , 837 P.2d 436, 437 (1992). 11 Browning v. Dixon, 114 Nev. 213, 218 , 954 P.2d 741…
examined Cited "see" Mezzano Vs. Townley (4×)
Nev. · 2021 · signal: see · confidence high
See Browning v. Dixon, 114 Nev. 213, 218 , 954 P.2d 741, 744 (1998) (concluding that when a party obtains a default judgment through improper service of process, the judgment is void and must be set aside).
discussed Cited "see" A&A Towing, Inc. v. Nevada Transportation Authority
D. Nev. · 2021 · signal: see · confidence high
See ECF Nos. 18, 19, 31. 16 The Due Process Clauses of both the Fourteenth Amendment and the Nevada 17 Constitution guarantee a “requisite…opportunity to be heard.” Browning v. Dixon, 954 P.2d 741 , 18 743 (Nev. 1998) (citing Grannis v. Ordean, 234 U.S. 385 (1914)).
discussed Cited "see" Carter v. Andrews (2×)
Nev. · 2016 · signal: see · confidence high
See Browning v. Dixon, 114 Nev. 213, 217 , 954 P.2d 741, 743 (1998) (citing Wachter v. Pizzutti, 276 U.S. 13 (1928)) (providing that "a nonresident motorist statute that allowed service upon the secretary of the state, but contained no provision for attempted notice to a nonresident defendant, violated due process of law").
discussed Cited "see" Marvin v. Fitch (2×)
Nev. · 2010 · signal: see · confidence high
See Browning v. Dixon, 114 Nev. 213, 217 , 954 P.2d 741, 743 (1998).
examined Cited "see" Abreu v. Gilmer (4×) also: Cited "see, e.g."
Nev. · 1999 · signal: see · confidence high
See Browning v. Dixon, 114 Nev. 213 , 954 P.2d 741 (1998) (holding that the plaintiff failed to exercise due diligence by ignoring “other reasonable means” of locating the defendant such as the defendant’s known employer and insurer); 4 Gassett v. Snappy Car Rental, 111 Nev. 1416 , 906 P.2d 258 (1995) (holding that the plaintiff failed to exercise due diligence, partly because it made no attempt to locate the defendant through her known attorney); Price v. Dunn, 106 Nev. 100 , 787 P.2d 785 (1990) (holding that although the plaintiff technically complied with the rule, she ignored other r…
discussed Cited "see, e.g." Callie v. Bowling (2×)
Nev. · 2007 · signal: see also · confidence low
Const. art. 1, § 8(5) (“No person shall be deprived of life, liberty, or property, without due process of law.”). 3 Maiola v. State, 120 Nev. 671, 675 , 99 P.3d 227, 229 (2004); see also Browning v. Dixon, 114 Nev. 213, 217 , 954 P.2d 741, 743 (1998).
discussed Cited "see, e.g." Modan v. Modan (2×)
N.J. Super. Ct. App. Div. · 2000 · signal: see also · confidence low
Inc. v. Fox Run Homeowners Ass'n, Inc., 704 So. 2d 694, 696 (Fla.Dist.Ct.App.1997); see also Browning v. Dixon, 114 Nev. 213 , 954 P. 2d 741, 744 (1998).
Retrieving the full opinion text from the archive…
DALE M. BROWNING, Appellant
v.
MELVIN DIXON, Respondent
29019.
Nevada Supreme Court.
Feb 26, 1998.
954 P.2d 741
Eglet & Prince, LLP., Henderson, for Appellant., Albert D. Massi, Ltd.., Las Vegas, for Respondent.
Per Curiam.
Cited by 16 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 87%
Citer courts: Nevada Supreme Court (1)

OPINION

Per Curiam:

The principal issue raised in this appeal is whether a plaintiff must use due diligence to locate a defendant before resorting to the substitute service provisions of NRS 14.070(2). We conclude that procedural due process requires such diligence, and we[*215] reverse the district court’s order denying appellant Dale Browning’s motion to set aside the default judgment entered against him.

FACTS

Browning and respondent Melvin Dixon were involved in an automobile accident on January 20, 1995. Browning and Dixon exchanged information about their names, addresses, telephone numbers, and insurers. Browning also gave to Dixon a business card identifying his employer’s name, address, and telephone number. At the time of the accident, Browning lived in an apartment complex at 5576 West Rochelle, apartment #29C, in Las Vegas. Dixon apparently concedes that the apartment number was included in the address Browning gave to him. [1] Approximately three weeks after the accident, Browning moved to a different residence in Las Vegas; Browning’s employer and employment address remained the same at all relevant times. Browning asserts that he informed the post office and Department of Motor Vehicles of his new residential address shortly after his move.

Within a few weeks after the accident, Dixon presented a claim for personal injuries to Browning’s automobile liability insurer. Browning’s insurer denied the claim, and Dixon retained an attorney. On March 3, 1995, Dixon’s attorney sent a letter of representation to Browning at 5576 West Rochelle, Las Vegas, Nevada. Beginning with this letter, and continuing until after the default was entered, Dixon omitted Browning’s apartment number from the address on every piece of mail he sent to Browning. Dixon also sent a copy of the representation letter to Browning’s insurer, which replied with a letter to Dixon’s attorney indicating that its decision to deny the claim had not changed.

Dixon filed a complaint on October 12, 1995. On November 30, 1995, Dixon filed in the district court an affidavit of due diligence indicating that he was unable to personally serve Browning with the summons and complaint. The affidavit, which appears to be a preprinted form, indicates that Dixon’s process server attempted to serve Browning at “5576 West Rochelle,” but that “no apartment number [was] known.” The affidavit further states that the process server “attempted normal and routine checks of telephone directories and real property” and was denied additional information from the apartment rental office.

[*216] On December 19, 1995, Dixon filed in the district court an affidavit of compliance indicating that, pursuant to NRS 14.070(2), he served the summons and complaint on the Director of the Department of Motor Vehicles, and mailed a notice of service with the summons and complaint to Browning at “5576 W. Rochelle, Las Vegas, Nevada.” Browning did not answer Dixon’s complaint, and Dixon obtained a default on January 19, 1996, and a default judgment on February 26, 1996. Browning claims that he first learned of the complaint and default judgment after Dixon contacted Browning’s insurer and demanded that the judgment be satisfied.

On April 26, 1996, Browning filed a motion to set aside the default judgment pursuant to NRCP 60(b)(1) and NRCP 60(c). Among other things, Browning argued that Dixon failed to exercise due diligence before resorting to the substitute service provisions of NRS 14.070(2). The district court noted at the hearing on Browning’s motion that Dixon “followed the exact criteria set forth in NRS 14.070(2) and acted in good faith in serving the Department of Motor Vehicles by using the best address available.” The district court’s written order denies Browning’s motion without discussion.

DISCUSSION

NRS 14.070(2) authorizes a plaintiff to serve process on an “operator of a motor vehicle involved in an accident” by personally serving the Director of the Department of Motor Vehicles and sending notice of the service, together with the summons and complaint, to the defendant at “the address supplied by the defendant in his accident report, if any, and if not, at the best address available to the plaintiff.”

NRS 14.070(5) provides that NRS 14.070(2) is not an exclusive method of service, but “if the operator defendant is found within the State of Nevada, he must be served with process in the State of Nevada.” (Emphasis added.) NRS 14.070(6) further provides that NRS 14.070(2) applies to “nonresident motorists and to resident motorists who have left the state or cannot be found within the state following an accident which is the subject of an action for which process is served pursuant to this section.” (Emphasis added.)

Thus, NRS 14.070(2) applies to nonresident motorists and resident motorists who have departed the state or cannot be found within the state. We conclude that the phrase “cannot be found” imposes an affirmative obligation on a plaintiff to diligently search for a resident motorist defendant to determine whether the defendant has, in fact, departed the state or cannot be located within the state. Any other conclusion contravenes the plain[*217] meaning of the statute and violates the principles of procedural due process. See Sheriff v. Wu, 101 Nev. 687, 689-90, 708 P.2d 305, 306 (1985) (“Where a statute may be given conflicting interpretations, one rendering it constitutional, and the other unconstitutional, the constitutional interpretation is favored.”) (citing Koscot Interplanetary, Inc. v. Draney, 90 Nev. 450, 530 P.2d 108 (1974)); McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986) (“words in a statute should be given their plain meaning unless this violates the spirit of the act”).

In Wuchter v. Pizzutti, 276 U.S. 13 (1928), the United States Supreme Court held that a nonresident motorist statute that allowed service upon the secretary of state, but contained no provision for attempted notice to a nonresident defendant, violated due process of law. The fundamental requisite of due process is the opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 394 (1914). “This right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1949). “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. Although impracticable and extended searches are not required, substitute service is available only “where it is not reasonably possible or practicable to give more adequate warning.” Id. at 317; see also Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 484-91 (1988) (emphasizing that the reasonableness of notice depends on the particular circumstances, and holding that a personal representative in a probate proceeding was required to make “reasonably diligent efforts” to identify creditors of the estate).

The foregoing authorities make it clear that substitute service pursuant to NRS 14.070(2) is efficacious only if the plaintiff first demonstrates that, after due diligence, the resident defendant cannot be found within the state. Our decision today is consistent with other decisions wherein due diligence in locating nonresident motorist defendants was required to perfect service of process. See Halliman v. Stiles, 464 S.W.2d 573 (Ark. 1971); Drinkard v. Eastern Airlines, Inc., 290 S.W.2d 175 (Mo. Ct. App. 1956); Carlson v. Bos, 740 P.2d 1269 (Utah 1987); Colley v. Dyer, 821 P.2d 565 (Wyo. 1991). It is also consistent with NRCP 4(e)(1)(i), which allows for service by publication only when the defendant, “after due diligence, [cannot] be found[*218] within the state.” See also NRS 179.1171(4) (requiring plaintiffs to exercise reasonable diligence when locating property claimants in civil forfeiture actions). Having concluded that due diligence is a necessary prerequisite to substitute service pursuant to NRS 14.070(2), we now turn to Dixon’s specific attempts to locate and personally serve Browning.

In Price v. Dunn, 106 Nev. 100, 787 P.2d 785 (1990), the plaintiff attempted to discover the defendant’s address through the telephone book, inquiries at the power company, and a conversation with the defendant’s stepmother. This court concluded that, despite the plaintiff’s technical compliance with NRCP 4(e)(1)(i), “her actual efforts, as a matter of law, fall short of the due diligence requirement to the extent of depriving [the defendant] of his fundamental right to due process.” Id. at 103, 787 P.2d at 786-87. This court also stated that “[wjhere other reasonable methods exist for locating the whereabouts of a defendant, plaintiff should exercise those methods.” Id.; see also Gassett v. Snappy Car Rental, 111 Nev. 1416, 906 P.2d 258 (1995); McNair v. Rivera, 110 Nev. 463, 874 P.2d 1240 (1994).

Dixon contends that he is not required to “hunt down” Browning, and that he made a reasonable attempt to personally serve Browning before resorting to substitute service. Dixon’s contentions are belied by the above authorities and the record on appeal. Dixon mailed his initial letter to Browning’s incomplete address, thereby reducing the likelihood that Browning would know Dixon was represented by counsel. Although Dixon made “routine checks” to locate Browning, he made no apparent attempt to locate Browning through Browning’s employer or insurer, both of which were known to him. In so doing, Dixon ignored other reasonable methods for locating Browning and failed, under the circumstances, to apprise Browning of the action pending against him.

For these reasons, we conclude, as a matter of law, that Dixon did not exercise due diligence in attempting to serve Browning. A default judgment not supported by proper service of process is void and must be set aside. Gassett, 111 Nev. at 1419, 906 P.2d at 261. Accordingly, we reverse the district court’s order denying Browning’s motion to set aside the default judgment entered against him and remand this matter to the district court with instructions to set aside the default judgment. [2]

1

Browning filed an affidavit in the district court indicating that he gave his complete address to Dixon at the scene of the accident. Dixon did not refute Browning’s averment; to the contrary, Dixon acknowledged that Browning provided his address, and that Browning lived at "5576 West Rochelle #29C. Las Vegas, Nevada." It is also undisputed that Dixon eventually mailed documents to Browning’s complete address.

2

Based on our disposition of this issue, we do not reach the merits of Browning’s other allegations of error.